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Land Title Determined by Probate Status

Dear Mr. Premack: My mother and father owned a parcel of land just outside the city. They both had wills leaving everything to each other, or if they both died then the land would go to my sister. Dad died in 1988 but mom did not do anything with his Will. My sister moved in with mom to help take care of her. Mom died in 2001, and my sister talked to a lawyer about probate of the Will then but she never got around to doing it. My sister died two months ago. She is divorced and has two grown children who she has not seen in years. I’ve asked everyone if my sister made a Will, and looked everywhere, but have not located a Will. How big is the legal mess? What is the status of the land? What should I tell her kids to do next? – T.N.

To understand the status of the land, you first need to understand probate law and intestacy law. Wills exist for the purpose of passing assets to specified heirs when the Will’s maker (the testator) dies. People often superstitiously avoid making a Will, fearing that it is bad luck. Nonsense! Making a Will does not cause death, and the superstition is just an excuse to avoid thinking about death. A Will is not about death; it is about responsibility, caring for our families, and properly handling our financial business.

Vital as a Will may be, it is equally vital that the survivors understand how to utilize the Will. When a Will is made, it is a private document. The public is unaware that it exists, and only a few people might know what it says. Thus, when the testator dies, the time has come to make the Will into a public document. A Will that says “I leave my land to my daughter” has no effect if it stays in the drawer at home, hidden from view.

To utilize the Will, it must be filed for probate in the county where the testator lived. Public notice of the Will must be given, and a Judge must rule that the Will is legally valid. The person nominated as Executor is then given full authority to act for the estate, including transferring title to real estate to the identified heirs. If the Will is not admitted to probate within four years of the date of death, the law forbids appointment of any Executor. The decedent is treated as though there was no Will. In that case, the laws of intestacy determine the identity of the heirs. With rare exception, failure to probate a Will in the time allowed is equivalent to dying without a Will.

Your father died in 1988. His Will was not probated. In 1988, intestacy law said that his half of the property passed to the children (you and your sister). His wife did not receive his half. [That law was changed in the early 1990’s, and intestate death under the new law usually gives the land to the surviving spouse.] When your mother died in 2001, her Will was not probated either. The intestacy law also left her half of the property to the two children. Thus, you own half and your sister owns half of the land. This is contrary to your parents’ Wills, but the Wills were not probated and have no effect.

Your sister died this year, intestate. Applying the law to the facts, we would conclude that her half of the land passes to her two children. You and they are thus co-owners.

Once again, this legal conclusion is based on facts that are not in the public record. Title to land is cataloged and recorded in the County Clerk’s office. Some legal proceedings must be held to properly document the change in title. For your parents, who died years ago, “affidavits of heirship” may create that record. For your sister, who died recently, it may be necessary to hold a “determination of heirship” in court along with administration of her estate to handle any creditor’s claims. You and her two adult children should talk to a certified attorney about coordinating your efforts on those legal steps.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.